FOR PUBLICATION 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 


MICHAEL A. NEWDOW,  

Plaintiff-Appellant, 

No. 00-16423 

v. 
D.C. No. 
U.S. CONGRESS; UNITED STATES OF 
CV 00-00495AMERICA; 
GEORGE W. BUSH,* 

MLS/PAN 
President of the United States; 

ORDER AND

STATE OF CALIFORNIA; ELK GROVE  

AMENDED

UNIFIED SCHOOL DISTRICT; DAVID 

OPINION

W. GORDON, Superintendent 
AND AMENDED

EGUSD; SACRAMENTO CITY 

CONCURRENCE/

UNIFIED SCHOOL DISTRICT; JIM 

DISSENT

SWEENEY, Superintendent SCUSD, 

Defendants-Appellees.  

Appeal from the United States District Court 
for the Eastern District of California 
Milton L. Schwartz, Senior Judge, Presiding 


Argued and Submitted 
March 14, 2002San Francisco, California 


Filed June 26, 2002 
Amended February 28, 2003 


Before: Alfred T. Goodwin, Stephen Reinhardt and 
Ferdinand F. Fernandez, Circuit Judges. 


Opinion by Judge Goodwin; 
Partial Concurrence and Partial Dissent by Judge Fernandez 


*George W. Bush is substituted for his predecessor, William Jefferson 
Clinton, as President of the United States. Fed. R. App. P. 43(c)(2). 

2771 


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NEWDOW v. U.S. CONGRESS 

COUNSEL 

Michael Newdow, Pro Se, Sacramento, California, for the 
plaintiff-appellant. 

Kristin S. Door, Assistant United States Attorney, Sacramento, 
California, Lowell V. Sturgill, Jr., Department of Justice, 
Washington, D.C., for federal government defendants-
appellees; A. Irving Scott, Terence J. Cassidy, Porter, Scott, 
Weiberg & Delehant, Sacramento, California, for school district 
defendants-appellees. 


NEWDOW v. U.S. CONGRESS 

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ORDER 

The opinion filed June 26, 2002, is ordered amended. The 
Clerk is instructed to file the amended opinion with Judge 
Fernandezs amended concurrence/dissent. Judge Reinhardts 
concurrence in the order denying rehearing en banc, along 
with Judge OScannlains and Judge McKeowns dissent 
from that order shall also be filed. 

The Clerk is also instructed not to accept for filing any new 
petitions for rehearing and petitions for rehearing en banc in 
this case. 

With the opinion thus amended, the panel has voted unanimously 
to deny the petitions for rehearing. 

The full court has been advised of the petitions for rehearing 
en banc. An active judge requested a vote on whether to 
rehear the matter en banc. The matter failed to receive a 
majority of the votes of the nonrecused active judges in favor 
of en banc consideration. Fed. R. App. P. 35. 

The petitions for rehearing are DENIED and the petitions 
for rehearing en banc are DENIED. 

REINHARDT, Circuit Judge, concurring in the order: 

My views as to the merits of this issue are set forth in the 
amended majority opinion authored by Judge Goodwin, and 
I adhere to them fully. I write separately for two reasons unrelated 
to the contents of that opinion. I write first to comment 
on the separate dissent to the denial of rehearing en banc 
authored by Judge McKeown and joined in by Judges Hawkins, 
Thomas, and Rawlinson, in which my colleagues appear 
to express the view that a case should be reheard en banc 
whenever it involves a question of exceptional importance. 


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NEWDOW v. U.S. CONGRESS 

FED. R. APP. P. 35(a)(2).1 Second, I am compelled to register 
my strong disagreement with one particularly unfortunate 
aspect of Judge OScannlains principal dissent that reflects a 
serious misconception of fundamental constitutional principles 
and the proper role of the federal judiciary. 

I 

As to the first question, I disagree with the notion that the 
importance of an issue is a sufficient reason to take a case en 
banc, either under the Rule or as a matter of judicial policy. 
Rule 35(a) advises this court of its discretionary power to 
order that a case already decided by a three-judge panel be 
reheard by the full court. Specifically, the rule begins by stating 
that a majority of the circuit judges who are in regular 
active service may order that an appeal or other proceeding be 
heard or reheard by the court of appeals en banc. FED. R. 
APP. P. 35(a) (emphasis added). Subsection two guides such 
discretionary consideration by stating that one compelling 
reason to grant rehearing en banc is the exceptional importance 
of a particular case. 

The most reasonable construction of the Rule is that this 
court should rehear a case en banc when it is both of exceptional 
importance and the decision requires correction. See 
United States v. Burdeau, 180 F.3d 1091, 1092 (9th Cir. 
1999) (Tashima, J., concurring in the order denying rehearing 
en banc) (Subject to rare exceptions, . . . we should review 
the statements in three[-]judge panel opinions only to determine 
whether the [panels] legal error resulted in an erroneous 
judgment . . . . . ) (quoting Chevron U.S.A. Inc. v. Natural 

1While the brief separate dissent is deliberately opaque and uninformative, 
I would suspect that not all of its signatories believe that the general 
rule they appear to advocate should apply regardless of the correctness 
of the panel opinion. The concept that exceptional importance is, without 
more, a sufficient reason for en banc review is, however, shared by at 
least several members of the Court and accordingly merits some discussion. 



NEWDOW v. U.S. CONGRESS 

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Res. Def. Council, 467 U.S. 837, 842 (1984)). A decision may 
warrant correction because a three-judge panel has reached a 
result or adopted a legal rule or principle that conflicts with 
our existing circuit law or that the majority of our court 
believes is incorrect and needs further review. The fact that 
three-judge panels often decide cases of exceptional importance, 
whether it be the constitutionality of a states decision 
to execute an individual who may be innocent, the existence 
or non-existence of a fundamental right, or the ability of the 
Congress to require the states to comply with federal law  
an issue that some of us thought had been settled by the successful 
end to the Civil War  is an unremarkable, but undeniably 
important, aspect of our appellate system. See Tracey 

E. George, The Dynamics and Determinants of the Decision 
to Grant En Banc Review, 74 WASH. L. REV. 213, 218 (1999) 
(stating that three-judge panels representing and acting on 
behalf of the whole court is a basic tenet of our intermediate 
appellate system). Unless reconsidered en banc, a decision of 
a three-judge panel is a decision of our court and speaks for 
our court. Moreover, it ordinarily constitutes the final judicial 
decision.2 
To rehear a case en banc simply on the basis that it involves 
an important issue would undermine the three-judge panel 
system and create an impractical and crushing burden on what 
otherwise should be, as Rule 35(a) suggests, an exceptional 
occurrence. See FED. R. APP. P. 35(a) (An en banc hearing 
or rehearing is not favored . . . .). According to statistics kept 
by the Clerk of the court, in 2002 this court decided 5,190 
cases on the merits, more than 98% of which were finally 

2While the Supreme Court unquestionably has the authority to review 
any or all of the decisions of the Court of Appeals, the Court has elected 
to hear a remarkably small number of cases in recent years. For example, 
in the 2001 term, of the 7,852 case filings, the Court heard argument in 
88 cases, and disposed of 85 in 76 signed opinions. See Supreme Court of 
the United States, 2002 Year-End Report on the Federal Judiciary, at 
http://www.supremecourtus.gov/publicinfo/year-end/ 
2002year-endreport.html. 


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NEWDOW v. U.S. CONGRESS 

decided by three-judge panels. These decisions are not measures 
of rough justice, later to be refined by the en banc 
court. Unless they decide issues of exceptional importance 
erroneously, create a direct intra-circuit split, or unless the 
interests of justice require that the decision be corrected, the 
opinions of three-judge panels should constitute the final 
action of this court. 

II 

I also feel compelled to discuss a disturbingly wrongheaded 
approach to constitutional law manifested in the dissent 
authored by Judge OScannlain. The dissent suggests that this 
court should be able to conclude that the panels holding was 
erroneous by observing the public and political reaction to 
its decision. Dissent at 2783. This is not the first time that the 
magnitude of the political response regarding an issue has distracted 
certain members of this court. An equally disturbing 
misunderstanding of the nature of our Constitution and the 
role of the federal judiciary was manifested in Coalition for 
Econ. Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), a case 
involving a California initiative on the subject of affirmative 
action. There, the three-judge panel, in a case that unfortunately 
was not taken en banc, notwithstanding its exceptional 
importance, made the following remarkable statement: A 
system which permits one judge to block with the stroke of 
a pen what 4,736,180 state residents voted to enact as law 
tests the integrity of our constitutional democracy. Id. at 699 
(OScannlain, J.). 

The Bill of Rights is, of course, intended to protect the 
rights of those in the minority against the temporary passions 
of a majority which might wish to limit their freedoms or liberties. 
As Justice Jackson recognized: 

The very purpose of a Bill of Rights was to withdraw 

certain subjects from the vicissitudes of political 

controversy, to place them beyond the reach of 


NEWDOW v. U.S. CONGRESS 

2779 

majorities and officials and to establish them as legal 
principles to be applied by the courts. Ones right to 
life, liberty, and property, to free speech, a free 
press, freedom of worship and assembly, and other 
fundamental rights may not be submitted to vote; 
they depend on the outcome of no elections. 

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 
(1943). It is the highest calling of federal judges to invoke the 
Constitution to repudiate unlawful majoritarian actions and, 
when necessary, to strike down statutes that would infringe on 
fundamental rights, whether such statutes are adopted by legislatures 
or by popular vote. The constitutional system that 
vests such power in an independent judiciary does not test[ ] 
the integrity of . . . democracy. It makes democracy vital, 
and is one of our proudest heritages. 
Moreover, Article III judges are by constitutional design 
insulated from the political pressures governing members of 
the other two branches of government. We are given life tenure 
and a secured salary so that, in our unique capacity to say 
what the law is, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 
177 (1803), we may decide constitutional issues without 
regard to popular vote, political consequence, or the prospect 
of future career advancement.3 Most federal judges do not 

3Alexander Hamilton was admirably cognizant of the danger of relying 
on temporary political whimsy: 

This independence of the judges is equally requisite to guard the 
Constitution and the rights of individuals from the effects of 
those ill humors which the arts of designing men, or the influence 
of particular conjectures, sometimes disseminate among the people 
themselves, and which, though they speedily give place to 
better information, and more deliberate reflection, have a tendency, 
in the meantime, to occasion dangerous innovations in the 
government, and serious oppressions of the minor party in the 
community. 

THE FEDERALIST NO. 78, at 437 (Alexander Hamilton) (Clinton Rossiter 
ed., 1999). 


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NEWDOW v. U.S. CONGRESS 

question the wisdom of this approach. When the federal judiciary 
is so firmly separated by constitutional structure from 
the direct influence of politics, we must not undermine that 
structure by allowing political pressures, polls, or focus 
groups to influence our opinions, even indirectly. 

This is not to say that federal judges should be completely 
sequestered from the attitudes of the nation we serve, even 
though our service is accomplished not through channeling 
popular sentiment but through strict adherence to established 
constitutional principles. The Constitution contemplates occasions 
when we must be responsive to long-term societal 
trends  when determining, for example, that which is cruel 
and unusual, see Hudson v. McMillian, 503 U.S. 1, 9 (1992), 
whether in the execution of the mentally retarded, see Atkins 

v. Virginia, 536 U.S. 304, ___, 122 S. Ct. 2242, 2247 (2002), 
or the execution of juvenile offenders, see In re Stanford, 123 
S.Ct. 472, 474 (2002) (Stevens, J., dissenting from the denial 
of an application for an original writ of habeas corpus). This 
broader long-term social conscience, however, is a matter far 
different from responding to particular immediate political 
pressures. We may not  we must not  allow public sentiment 
or outcry to guide our decisions. It is particularly important 
that we understand the nature of our obligations and the 
strength of our constitutional principles in times of national 
crisis; it is then that our freedoms and our liberties are in the 
greatest peril. Any suggestion, whenever or wherever made, 
that federal judges should be encouraged by the approval of 
the majority or deterred by popular disfavor is fundamentally 
inconsistent with the Constitution and must be firmly rejected. 
OSCANNLAIN, Circuit Judge, with whom KLEINFELD, 
GOULD, TALLMAN, RAWLINSON, and CLIFTON, Circuit 
Judges, join, dissenting from the denial of rehearing en 
banc: 

Last June, a two-judge majority of a three-judge panel of 
this court ruled that the Pledge of Allegiance was unconstitu



NEWDOW v. U.S. CONGRESS 

2781 

tional simply because of the presence of two offending words: 
under God. It was an exercise in judicial legerdemain 
which, not surprisingly, produced a public outcry across the 
nation. Since that time we, as a court, have had the opportunity 
to order reconsideration of that decision en banc, yet a 
majority of the 24 active judges eligible to vote has decided 
not to do so. While there are, no doubt, varied and plausible 
reasons why this result occurred, I respectfully conclude that 
our court has made a serious mistake and thus must dissent 
from its order denying reconsideration. 

I 

While I cannot say that a randomly selected 11-judge panel 
would have ruled differently, I believe that neither the June 
2002 version, Newdow v. United States Congress, 292 F.3d 
597 (9th Cir. 2002) (Newdow I), nor todays slightly revised 
version, ___ F.3d ___ (Newdow II) to essentially the same 
effect, is defensible. We should have reheard Newdow I en 
banc, not because it was controversial, but because it was 
wrong, very wrongwrong because reciting the Pledge of 
Allegiance is simply not a religious act as the two-judge 
majority asserts, wrong as a matter of Supreme Court precedent 
properly understood, wrong because it set up a direct 
conflict with the law of another circuit, and wrong as a matter 
of common sense.1 We should have given 11 judges a chance 
to determine whether the two-judge majority opinion truly 

1Judge Reinhardts protestations to the contrary notwithstanding, I, too, 
believe that [o]ur judicial charge is to stand above the inflamed passions 
of the public. Dazo v. Globe Airport Sec. Serv., 295 F.3d 934, 943 (9th 
Cir. 2002) (OScannlain, J., concurring and dissenting). My disagreement 
with the panel majority has nothing to do with bending to the will of an 
outraged populace, and everything to do with the fact that Judge Goodwin 
and Judge Reinhardt misinterpret the Constitution and 40 years of 
Supreme Court precedent. That most people understand this makes the 
decision no less wrong. It doesnt take an Article III judge to recognize 
that the voluntary recitation of the Pledge of Allegiance in public school 
does not violate the First Amendment. 


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NEWDOW v. U.S. CONGRESS 

reflects the law of the Ninth Circuit.2 Reciting the Pledge of 
Allegiance cannot possibly be an establishment of religion 
under any reasonable interpretation of the Constitution.3 

Perhaps in an effort to avoid ultimate Supreme Court 
review, Newdow II which replaces it, avoids expressly reaching 
the technical question of the constitutionality of the 1954 
Act. Fundamentally, however, the amended decision is every 
bit as bold as its predecessor. It bans the voluntary recitation 
of the Pledge of Allegiance in the public schools of the nine 
western states thereby directly affecting over 9.6 million students,
4 necessarily implies that both an Act of Congress5 and 
a California law6 are unconstitutional, clearly conflicts with 

2This case presents the classic situation required for our court to rehear 
a case en banc. En banc consideration would have allowed us to correct 
the error of a prior panels decision with respect to the Pledge and resolve 
a constitutional question of exceptional importance that affects the lives of 
millions of school children who reside within the geographical boundaries 
of the Ninth Circuit. See Fed. R. App. P. 35(a). The exceptional importance 
of this case reinforces the need for correction of the panels mistaken 
view of our Constitution. 

3U.S. Const. amend. I. (Congress shall make no law respecting an 
establishment of religion, or prohibiting the free exercise thereof; or 
abridging the freedom of speech, or of the press; or the right of the people 
peaceably to assemble, and to petition the Government for a redress of 
grievances.) (emphasis added). 

4See U.S. Dept of Ed., Natl Ctr. for Ed. Statistics, available at http:// 
nces.ed.gov/pubs2002/snf_report/table_01_1.asp. The approximate figure 
is for the school year 2000-01, comprising the states of Alaska, Arizona, 
California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, as 
well as Guam and the Northern Marianas. 

54 U.S.C.  4 (The Pledge of Allegiance to the Flag: I pledge allegiance 
to the Flag of the United States of America, and to the Republic 
for which it stands, one Nation under God, indivisible, with liberty and 
justice for all. ). 

6Cal. Educ. Code  52720. This section provides that at the beginning 
of the first regularly scheduled class or activity period . . . there shall be 
conducted appropriate patriotic exercises. The giving of the Pledge of 
Allegiance to the Flag of the United States of America shall satisfy the 
requirements of this section. 


NEWDOW v. U.S. CONGRESS 

2783 

the Seventh Circuits decision in Sherman v. Cmty. Consol. 
Sch. Dist. 21 of Wheeling Township, 980 F.2d 437 (1992), and 
threatens cash-strapped school districts and underpaid teachers 
with the specter of civil actions for money damages pursuant 
to 42 U.S.C.  1983. 

Newdow I, the subject of our en banc vote, no longer exists; 
it was withdrawn after the en banc call failed. The panel 
majority has evolved to this extent: in Newdow I the Pledge 
was unconstitutional for everybody; in Newdow II the Pledge 
is only unconstitutional for public school children and teachers. 
The remainder of this dissent is directed entirely to Newdow 
II, which, as shall be demonstrated, differs little from 
Newdow I in its central holding. With grim insistence, the 
majority in Newdow II continues to stand by its original error 
that voluntary recitation of the Pledge of Allegiance in public 
school violates the Establishment Clause because, according 
to the two-judge panel majority, it is a religious act. 
Newdow II, ___ F.3d at ___. Common sense would seem to 
dictate otherwise, as the public and political reaction should 
by now have made clear. If reciting the Pledge is truly a religious 
act in violation of the Establishment Clause, then so is 
the recitation of the Constitution7 itself, the Declaration of Independence,
8 the Gettysburg Address,9 the National Motto,10 or 
the singing of the National Anthem.11 Such an assertion would 

7U.S. Const. art. VII. (Year of our Lord) (emphasis added). 

8The Declaration of Independence contains multiple references to God. 
The founders claimed the right to dissolve the political bands based on 
the Laws of Nature and of Natures God. The most famous passage, of 
course, is that all men are created equal, that they are endowed by their 
Creator with certain unalienable Rights. Subsequently, the signatories 
appeal[ ] to the Supreme Judge of the world to rectify their intentions. 

9On November 19, 1863, President Lincoln declared that this Nation, 
under God, shall have a new birth of freedomand that Government of 
the people, by the people, for the people, shall not perish from the earth. 

10See 36 U.S.C.  302. ( In God we trust is the national motto.) 
(emphasis added). 

11See 36 U.S.C.  301(a) (The composition consisting of the words and 
music known as the Star-Spangled Banner is the national anthem.). In 


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NEWDOW v. U.S. CONGRESS 

make hypocrites out of the Founders, and would have the 
effect of driving any and all references to our religious heritage 
out of our schools, and eventually out of our public life. 

II 

The Newdow II majoritys primary legal argument is that 
the Supreme Courts decision in Lee v. Weisman, 505 U.S. 
577 (1992), a school prayer case, controls the outcome of this 
case. In fact, rather than merely following Lee and its predecessors, 
the two-judge panel majority makes a radical 
departure from Lee and the cases it purports to apply. To 
understand why this is so, an examination of the Supreme 
Courts school prayer decisions which culminate in Lee is in 
order. 

A 

1 

The fountainhead of all school prayer cases is Engel v. 
Vitale, 370 U.S. 421 (1962). In Engel the Court considered a 
school policy whereby children were directed to say aloud a 
prayer composed by state officials. The Court found that this 
practice was inconsistent with the Establishment Clause, reasoning 
that [the] program of daily classroom invocation of 
Gods blessings as prescribed in the Regents prayer is a religious 
activity. It is a solemn avowal of divine faith and supplication 
for the blessings of the Almighty. The nature of such 

fact, the Anthem is much more explicitly religious in content than the 
Pledge, and much more than a mere profession of the composers faith 
in a Supreme Being, as the majority would have it. See Newdow II, ___ 
F.3d at ___. Consider the following passage from the fourth stanza: Blest 
with victory and peace, may the heaven-rescued land, Praise the Power 
that hath made and preserved us a nation. Then conquer we must, when 
our cause is just, And this be our motto: In God is our trust.  (emphasis 
added). 


NEWDOW v. U.S. CONGRESS 

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a prayer has always been religious. Id. at 424-25. The Court 
concluded by stating that the state should leave prayer, that 
purely religious function, to the people themselves. Id. at 

435. In a footnote, it reasoned as follows: 
There is of course nothing in the decision reached 
here that is inconsistent with the fact that school 
children and others are officially encouraged to 
express love for our country by reciting historical 
documents such as the Declaration of Independence 
which contain references to the Deity or by singing 
officially espoused anthems which include the composers 
professions of faith in a Supreme Being, or 
with the fact that there are many manifestations in 
our public life of belief in God. Such patriotic or ceremonial 
occasions bear no true resemblance to the 
unquestioned religious exercise that the State of New 
York has sponsored in this instance. 

Id. at 435 n.21. The Court drew an explicit distinction 
between patriotic invocations of God on the one hand, and 
prayer, an unquestioned religious exercise, on the other. 
Concurring, Justice Douglas wrote that the narrow question 
presented was whether the state oversteps the bounds when 
it finances a religious exercise. Id. at 439 (Douglas, J., concurring). 
Justice Douglas noted that the Pledge of Allegiance, 
like . . . prayer, recognizes the existence of a Supreme 
Being. Id. at 440 n.5. However, he noted that the House 
Report recommending the addition of the words under God 
to the Pledge stated that those words in no way run contrary 
to the First Amendment but recognize only the guidance of 
God in our national affairs.  Id. (quoting H.R. Rep. No. 
1693, 83d Cong., 2d Sess., p. 3). 

2 

The following year, the Supreme Court decided Abington 
School Dist. v. Schempp, 374 U.S. 203 (1963). In that case, 


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NEWDOW v. U.S. CONGRESS 

the Court considered the constitutionality of a Pennsylvania 
statute requiring that [a]t least ten verses from the Holy Bible 
shall be read, without comment, at the opening of each public 
school on each school day. Id. at 205. The practice in public 
schools was for a teacher or student volunteer to read the 
required Bible verses each morning. This in turn was followed 
by a recitation of the Lords prayer. Finally, the class would 
recite the Pledge of Allegiance to the Flag. Id. at 207-08. The 
Court struck down the Bible reading and the practice of reciting 
the Lords prayer as a state prescribed religious ceremony, 
id. at 223, but said nothing about the practice of reciting 
the Pledge. 

As in Engel, the Court took pains to point to the character 
of the exercises it found wanting. The Court reasoned that 
reading . . . the verses . . . possesses a devotional and religious 
character and constitutes in effect a religious observance. 
The devotional and religious nature of the morning 
exercises is made all the more apparent by the fact that the 
Bible reading is followed immediately by a recital in unison 
by the pupils of the Lords prayer. Id. at 210. The pervading 
religious character of the ceremony, wrote Justice Clark, 
cannot be gainsaid, and led to the conclusion that the exercises 
violated the Establishment Clause. Id. at 224. 

The concurring opinions in Schempp were all to the same 
effect. Justice Douglas agreed with the majoritys conclusion 
that the practices at issue violated the Establishment Clause 
because the State is conducting a religious exercise. Id. at 
229 (Douglas, J., concurring). In a lengthy concurrence, Justice 
Brennan wrote that [t]he religious nature of the exercises 
here challenged seems plain. Id. at 266 (Brennan, J., concurring). 
After surveying the history of devotional exercises in 
American public schools, Justice Brennan stated that the 
panorama of history permits no other conclusion than that 
daily prayers and Bible readings in the public schools have 
always been designed to be, and have been regarded as, essentially 
religious exercises. Id. at 277-78. For Justice Brennan, 


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2787 

religious exercises in the public schools present a unique 
problem but not every involvement of religion in public life 
violates the Establishment Clause. Id. at 294. He warned that 
[a]ny attempt to impose rigid limits upon the mention of God 
. . . in the classroom would be fraught with dangers. Id. at 

301. Specifically, he wrote that [t]he reference to divinity in 
the revised pledge of allegiance . . . may merely recognize the 
historical fact that our Nation was believed to have been 
founded under God. Thus reciting the pledge may be no 
more of a religious exercise than the reading aloud of Lincolns 
Gettysburg Address, which contains an allusion to the 
same historical fact. Id. at 304. 
Justice Goldberg also wrote separately, stating that the 
clearly religious practices presented in these cases are . . . 
wholly compelling. Id. at 305 (Goldberg, J., concurring). He 
reasoned that [t]he pervasive religiosity and direct governmental 
involvement inhering in the prescription of prayer and 
Bible reading in the public schools . . . cannot realistically be 
termed simply accommodation. Id. at 307. Like Justice Brennan, 
Justice Goldberg cautioned that the decision does not 
mean that all incidents of government which import of the 
religious are therefore and without more banned by the strictures 
of the Establishment Clause. Id. at 307-08. He then 
quoted in full the passage from Engel which drew a distinction 
between patriotic invocations of God, and unquestioned 
religious exercises that give rise to Establishment Clause violations. 
Id. 

3 

The next case in this line is Wallace v. Jaffree, 472 U.S. 38 
(1985). That case considered the constitutionality of an Alabama 
statute authorizing a 1-minute period of silence in public 
schools for meditation or voluntary prayer. Id. at 40. The 
Court found that [t]he wholly religious character of the 
challenged law was plainly evident from its text. Id. at 58. 
The legislatures one and only purpose in enacting the law 


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NEWDOW v. U.S. CONGRESS 

was to return prayer to the public schools. Id. at 59-60. Justice 
Powells separate concurrence was prompted by Alabamas 
persistence in attempting to institute state-sponsored 
prayer in the public schools. Id. at 62 (Powell, J., concurring). 
Justice OConnor wrote separately to suggest that 
moment-of-silence statutes were not a religious exercise, 
and therefore were constitutional. Id. at 72 (OConnor, J., 
concurring). Justice OConnor wrote further that the words 
under God in the Pledge . . . serve as an acknowledgment 
of religion with the legitimate secular purposes of solemnizing 
public occasions, [and] expressing confidence in the 
future.  Id. at 78 n.5 (quoting Lynch v. Donnelly, 465 U.S. 
668, 693 (OConnor, J., concurring)) (alterations in original). 
In contrast, the Alabama statute at issue was very different 
from the Pledgethe state had intentionally crossed the line 
[by] affirmatively endorsing the particular religious practice 
of prayer. Id. at 84. 

4 

Finally, there is the Supreme Courts decision in Lee v. 
Weisman. The issue presented was whether including clerical 
members who offer prayers as part of the official school graduation 
ceremony is consistent with the Establishment Clause. 
505 U.S. at 580. The graduating students entered as a group 
in a processional, after which the students stood for the 
Pledge of Allegiance and remained standing during the 
rabbis prayers. Id. at 583. Justice Kennedy wrote that the 
significance of the prayers lies . . . at the heart of [the] case. 
Id. He framed the inquiry as follows: 

These dominant facts mark and control the confines 
of our decision: State officials direct the performance 
of a formal religious exercise at promotional 
and graduation ceremonies for secondary schools. 
Even for those students who object to the religious 
exercise their attendance and participation in the 
state-sponsored religious activity are in a fair and 


NEWDOW v. U.S. CONGRESS 

2789 

real sense obligatory, though the school district does 

not require attendance as a condition for receipt of 

the diploma. 

Id. at 586. 

The Court in Lee concluded that Engel and its progeny controlled 
the outcome, writing that [c]onducting this formal 
religious observance conflicts with settled rules pertaining to 
prayer exercises for students. Id. at 587. As in Engel, 
Schempp, and Wallace, the crucial factor was the nature of the 
exercise in which the students were asked to participate. Time 
and again the Court went out of its way to stress the nature 
of the exercise, writing that prayer was an overt religious 
exercise, id. at 588, and that prayer exercises in public 
schools carry a particular risk of indirect coercion. Id. at 592. 
The practice was unconstitutional because the State has in 
every practical sense compelled attendance and participation 
in an explicit religious exercise at an event of singular importance 
to every student. Id. at 598. Just like the decisions in 
Engel and Schempp, the Court in Lee took pains to stress the 
confines of its holding, concluding that [w]e do not hold that 
every state action implicating religion is invalid if one or a 
few citizens find it offensive, id. at 597, and that [a] relentless 
and all-pervasive attempt to exclude religion from every 
aspect of public life could itself become inconsistent with the 
Constitution. Id. at 598. 

B 

Two fundamental principles may therefore be derived from 
the school prayer cases culminating in Lee. 

1 

Formal religious observances are prohibited in public 
schools because of the danger that they may effect an establishment 
of religion. See Engel, 370 U.S. at 424-25 ([D]aily 


2790 

NEWDOW v. U.S. CONGRESS 

classroom invocation of Gods blessings . . . is a religious 
activity.); Schempp, 374 U.S. at 210 (Bible reading followed 
by the Lords prayer possesses a devotional and religious 
character and constitutes in effect a religious observance.); 
Wallace, 472 U.S. at 58 (Prayer is of a wholly religious character.); 
Lee, 505 U.S. at 586 (Prayer written by state officials 
constitutes a formal religious exercise). In each of these 
cases, the Court took pains to stress that not every reference 
to God in public schools was prohibited. See Engel, 370 U.S. 
at 435 n.21 (patriotic or ceremonial occasions which contain 
references to the Deity bear no true resemblance to the 
unquestioned religious exercise of prayer); Schempp, 374 

U.S. at 301 (Brennan, J., concurring) (Any attempt to impose 
rigid limits upon the mention of God . . . in the classroom 
would be fraught with dangers.); Wallace, 472 U.S. at 78 n.5 
(OConnor, J., concurring) (the words under God in the 
Pledge are not unconstitutional); Lee, 505 U.S. at 598 (A 
relentless and all-pervasive attempt to exclude religion . . . 
could itself become inconsistent with the Constitution.). 
2 

Once it is established that the state is sanctioning a formal 
religious exercise, then the fact that the students are not 
required to participate in the formal devotional exercises does 
not prevent those exercises from being unconstitutional. See 
Engel, 370 U.S. at 431 ([T]he indirect coercive pressure 
upon religious minorities to conform to the prayer exercises 
is plain.); Schempp, 374 U.S. at 210-11 (The fact that 
some pupils, or theoretically all pupils, might be excused 
from attendance at the exercises does not mitigate the obligatory 
nature of the ceremony.); Wallace, 472 U.S. at 57 
(State-sanctioned voluntary prayer in public schools violates 
Establishment Clause); Lee, 505 U.S. at 592 ([P]rayer exercises 
in public schools carry a particular risk of indirect coercion.). 
To be sure, Lee is the Courts most elaborate 
pronouncement with respect to indirect coercion. It identifies 
the circumstances in which indirect coercion may be said to 


NEWDOW v. U.S. CONGRESS 

2791 

be unconstitutional: when the government directs the performance 
of a formal religious exercise in such a way as to 
oblige the participation of objectors. Lee, 505 U.S. at 586. 

III 

No court, state or federal, has ever held, even now, that the 
Supreme Courts school prayer cases apply outside a context 
of state-sanctioned formal religious observances. But Newdow 
II finesses all that, and the sleight of hand the majority uses 
becomes immediately apparent: obfuscate the nature of the 
exercise at issue and emphasize indirect coercion. The panel 
majority simply ignores, because they are inconvenient, the 
dominant and controlling facts in Lee and its predecessors: 
that Establishment Clause violations in public schools are 
triggered only when State officials direct the performance of 
a formal religious exercise. 505 U.S. at 586 (emphasis 
added); see also Schempp, 374 U.S. at 210 (devotional . . . 
religious observance prohibited); Wallace, 472 U.S. at 58 
(activities of a wholly religious character prohibited). 

A 

To avoid a flagrant inconsistency with Lee, and with 40 
years of Supreme Court precedent, the two-judge panel 
majority must first examine whether the act of pledging allegiance 
is a religious act. As the Seventh Circuit in Sherman 
framed it, Does under God make the Pledge a prayer, 
whose recitation violates the establishment clause of the first 
amendment? 980 F.2d at 445. That court answered the question 
in the negative; the Newdow II majority, in conclusory 
fashion, simply assumes the affirmative. ___ F.3d at ___ 
([W]e conclude that the school district policy impermissibly 
coerces a religious act.) (emphasis added). 

This assertion belies common sense. Most assuredly, to 
pledge allegiance to flag and country is a patriotic act. After 
the public and political reaction last summer, it is difficult to 


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NEWDOW v. U.S. CONGRESS 

believe that anyone can continue to think otherwise. The fact 
the Pledge is infused with an undoubtedly religious reference 
does not change the nature of the act itself. The California 
statute under which the school district promulgated its policy 
is entitled [d]aily performance of patriotic exercises in public 
schools. Cal. Educ. Code  52720 (emphasis added). The 
Pledge is recited not just in schools but also at various official 
events and public ceremonies, including perhaps the most 
patriotic of occasionsnaturalization ceremonies. Generally, 
the Pledge is recited while standing, facing a United States 
flag, with the right hand held over the heart, much like the 
National Anthem. See 4 U.S.C.  4 (articulating proper procedure 
for reciting Pledge); 36 U.S.C.  301 (during anthem all 
present . . . should stand at attention facing the flag with the 
right hand over the heart.). Whatever one thinks of the normative 
values underlying the Pledge, they are unquestionably 
patriotic in nature. Indeed, it is precisely because of the 
Pledges explicitly patriotic nature that in 1943 the Supreme 
Court ruled that no one is required to Pledge allegiance 
against their will. West Virginia v. Barnette, 319 U.S. 624, 
642 (1943). 

In contrast, to pray is to speak directly to God, with bowed 
head, on bended knee, or some other reverent disposition. It 
is a solemn and humble approach to the divine in order to give 
thanks, to petition, to praise, to supplicate, or to ask for guidance. 
Communal prayer, by definition, is an even more forceful 
and profound experience for those present. Little wonder 
that the Supreme Court has recognized the unique problem 
and particular risk posed by school prayer to nonparticipating 
students. Lee, 505 U.S. at 592 ([P]rayer exercises in public 
schools carry a particular risk of indirect coercion.); 
Schempp, 374 U.S. at 294 (Brennan, J., concurring) (noting 
that prayers in public schools present a unique problem). 

Not only does the panel majoritys conclusion that pledging 
allegiance is a religious act defy common sense, it contradicts 
our 200-year history and tradition of patriotic references 


NEWDOW v. U.S. CONGRESS 

2793 

to God. The Supreme Court has insisted that interpretations of 
the Establishment Clause must comport with what history 
reveals was the contemporaneous understanding of its guarantees. 
Lynch, 465 U.S. at 673; see also Schempp, 374 U.S. at 
294 ([T]he line we must draw between the permissible and 
the impermissible is one which accords with history and faithfully 
reflects the understanding of the Founding Fathers.) 
(Brennan, J., concurring). 

The majoritys unpersuasive and problematic disclaimers 
notwithstanding, Newdow II precipitates a war with our 
national tradition, McCollum v. Bd. of Ed., 333 U.S. 203, 211 
(1948), and as Judge Fernandez so eloquently points out in 
dissent, only the purest exercise in sophistry could save multiple 
references to our religious heritage in our national life 
from Newdow IIs axe. Of course, the Constitution itself 
explicitly mentions God, as does the Declaration of Independence, 
the document which marked us as a separate people. 
The Gettysburg Address, inconveniently for the majority, 
contains the same precise phraseunder Godfound to 
constitute an Establishment Clause violation in the Pledge.12 
After Newdow II, are we to suppose that, were a school to 
permitnot requirethe recitation of the Constitution, the 
Declaration of Independence, or the Gettysburg Address in 
public schools, that too would violate the Constitution? Were 
the founders of the United States . . . unable to understand 
their own handiwork[?] Sherman, 980 F.2d at 445. Indeed, 
the recitation of the Declaration of Independence would seem 
to be the better candidate for the chopping block than the 
Pledge, since the Pledge does not require anyone to acknowledge 
the personal relationship with God to which the Declaration 
speaks.13 So too with our National Anthem and our 
National Motto. 

12See infra footnote 9. 
13See infra footnote 8. 


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NEWDOW v. U.S. CONGRESS 

Our national celebration of Thanksgiving dates back to 
President Washington, which Congress stated was to be 
observed by acknowledgment with grateful hearts, the many 
and signal favours of Almighty God. Lynch, 465 U.S. at 675 

n.2. Congress made Thanksgiving a permanent holiday in 
1941,14 and Christmas has been a national holiday since 1894.15 
Are pere Newdows constitutional rights violated when his 
daughter is told not to attend school on Thanksgiving? On 
Christmas day? Must school outings to federal courts be prohibited, 
lest the children be unduly influenced by the dreaded 
intonation God save these United States and this honorable 
Court?16 A theory of the Establishment Clause that would 
have the effect of driving out of our public life the multiple 
references to the Divine that run through our laws, our rituals, 
and our ceremonies is no theory at all. 
B 

As if all of this were not enough, the Supreme Court has 
gone out of its way to make it plain that the Pledge itself 
passes constitutional muster. In two of the school prayer 
cases, the Court noted without so much as a hint of disapproval 
the fact that the students, in addition to being subject 
to formal religious observances, also recited the Pledge of 
Allegiance. See Schempp, 374 U.S. at 207-08 (noting that the 
practice in public schools consisted of Bible reading and recitation 
of the Lords prayer, followed by recitation of the 
Pledge); Lee, 505 U.S. at 583 (noting that the students stood 
for the Pledge of Allegiance and remained standing during the 
rabbis prayers.). 

14See 5 U.S.C.  6103(a). 
15See id. 
16Indeed, even our own courts formal announcement to open sessions 


contains the offending word: Hear ye! hear ye! All persons having business 
with the honorable, the United States Court of Appeals for the Ninth 
Circuit will now draw near, give your attention and you will be heard, for 
this court is now in session. God save these United States and this honorable 
Court. (emphasis added). 


NEWDOW v. U.S. CONGRESS 

2795 

Several other Supreme Court cases contain explicit references 
to the constitutionality of the Pledge. See Engel, 370 

U.S. at 440 n.5 (Douglas, J., concurring) ([The Pledge] in no 
way run[s] contrary to the First Amendment) (quoting H.R. 
Rep. No. 1693, 83d Cong., 2d Sess., p. 3); Schempp, 374 U.S. 
at 304 (Brennan, J., concurring) ([R]eciting the pledge may 
be no more of a religious exercise than the reading aloud of 
Lincolns Gettysburg Address.); Wallace, 472 U.S. at 78 n.5 
(OConnor, J., concurring) ([T]he words under God in the 
Pledge . . . serve as an acknowledgment of religion.); Co. of 
Allegheny v. ACLU, 492 U.S. 573, 602-03 (Blackmun, J., for 
the court) (Our previous opinions have considered in dicta 
. . . the pledge, characterizing [it] as consistent with the proposition 
that government may not communicate an endorsement 
of religious belief.); Lynch v. Donnelly, 465 U.S. 668, 
676 (1984) (Burger, C.J., for the court) (Other examples of 
reference to our religious heritage are found . . . in the language 
One nation under God, as part of the Pledge of Allegiance 
to the American flag. That pledge is recited by many 
thousands of public school childrenand adultsevery 
year.). 
The panel majoritys answer to these myriad statements 
from our high court is summarily to dismiss them as dicta. 
However, dicta of the Supreme Court have a weight that is 
greater than ordinary judicial dicta as prophecy of what that 
Court might hold. We should not blandly shrug them off 
because they were not a holding. Zal v. Steppe, 968 F.2d 
924, 935 (9th Cir. 1992) (Noonan, J., concurring and dissenting 
in part); see also United States v. Baird, 85 F.3d 450, 453 
(9th Cir. 1996) ([W]e treat Supreme Court dicta with due deference.).
17 

17Other courts have, unremarkably enough, not been so flippant when 
it comes to considering consistent Supreme Court dicta on this issue. See 
Sherman, 980 F.2d at 448 ([A]n inferior court had best respect what the 
majority says rather than read between the lines. If the Court proclaims 
that a practice is consistent with the establishment clause, we take its 


2796 

NEWDOW v. U.S. CONGRESS 

C 

The Newdow II majority, then, finds itself caught between 
a rock and a hard placethe recitation of the Pledge is not a 
formal religious act, while patriotic invocations of God do not 
give rise to Establishment Clause violations. It nonetheless 
manages to skirt these obstacles to reach its indirect coercion 
analysis. Newdow IIs conclusory foray into the social sciences 
is a case study, an advertisement, for why it is that the 
Supreme Court has anchored coercion analysis only to those 
situations where formal religious exercises take place in our 
public schools. The panel majority seeks to protect dissenters 
at the risk of courting some unpopularity, but this is not the 
test. [O]ffense alone does not in every case show a violation 
. . . . and sometimes to endure social isolation or even anger 
may be the price of conscience or nonconformity. Lee, 505 

U.S. at 597-98. The Newdow II majoritys expansive application 
of the coercion test is ill-suited to a society as diverse as 
ours, since almost every cultural practice is bound to offend 
someones sensibilities. In affording Michael Newdow the 
right to impose his views on others, Newdow II affords him 
a right to be fastidiously intolerant and self-indulgent. In 
granting him this supposed right, moreover, the two-judge 
panel majority has not eliminated feelings of discomfort and 
isolation, it has simply shifted them from one group to 
another. 
Newdow IIs psychological ipse dixit is also delivered without 
reference or regard to our collective experience in the 

assurances seriously. If the Justices are just pulling our leg, let them say 
so.); Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996) ([T]his 
court considers itself bound by Supreme Court dicta almost as firmly as 
by the Courts outright holdings, particularly when the dicta is recent and 
not enfeebled by later statements.); ACLU v. Capital Square Review, 243 
F.3d 289, 301 n.10 (6th Cir. 2001) (We should . . . be amazed if the 
Supreme Court were now to question the constitutionality of the [revised 
Pledge]). Indeed, the unanimity on this point relative to Newdow II is 
striking. 


NEWDOW v. U.S. CONGRESS 

2797 

half-century since the passage of the offending statute. In that 
time, generations of Americans have grown up reciting the 
Pledge, religious tolerance and diversity has flourished in this 
country, and we have become a beacon for other nations in 
this regard. As Judge Fernandez observes, it is difficult to 
detect any signs of incipient theocracy springing up since the 
Pledge was amended in 1954. Newdow II ___ F.3d at ___ n.4 
(Fernandez, J., dissenting). 

IV 

In fairness to the Newdow II panel majority, its professed 
neutrality does have some plausible basis in the case law of 
the Supreme Court, which has undoubtedly constructed a 
fractured and incoherent doctrinal path in the Establishment 
Clause area, broadly speaking. Sep. of Church and State 
Comm. v. City of Eugene, 93 F.3d 617, 622 (9th Cir. 1996) 
(OScannlain, J., concurring). Indeed, its Establishment 
Clause cases sometimes more closely resemble ad hoc Delphic 
pronouncements than models of guiding legal principles. 
Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 
282 (5th Cir. 1996) (Jones, J., dissenting from denial of 
rehearing en banc). Supreme Court Justices themselves have 
recognized that if some of its reasoning were to be applied 
logically, it would lead to the elimination of many cherished, 
long-standing practices. Co. of Allegheny, 492 U.S. at 674 

n.10 (Kennedy, J., dissenting). 
With respect to the issue presented in this case, however, 
the Supreme Court has displayed remarkable consistency 
patriotic invocations of God simply have no tendency to 
establish a state religion. Even Justice Brennan, that most stalwart 
of separationists, recognized that some official acknowledgment 
of God is appropriate if the government is not to 
adopt a stilted indifference to the religious life of the people. 
Lynch, 465 U.S. at 714 (Brennan, J., dissenting). The decision 
reached in Newdow II does precisely that: it adopts a stilted 


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NEWDOW v. U.S. CONGRESS 

indifference to our past and present realities as a predominantly 
religious people. 

But Newdow II goes further, and confers a favored status 
on atheism in our public life. In a society with a pervasive 
public sector, our public schools are a most important means 
for transmitting ideas and values to future generations. The 
silence the majority commands is not neutralit itself conveys 
a powerful message, and creates a distorted impression 
about the place of religion in our national life.18 The absolute 
prohibition on any mention of God in our schools creates a 
bias against religion. The panel majority cannot credibly 
advance the notion that Newdow II is neutral with respect to 
belief versus non-belief; it affirmatively favors the latter to 
the former. One wonders, then, does atheism become the 
default religion protected by the Establishment Clause? 

In short, a lack of clarity in the Supreme Courts Establishment 
Clause cases generally does not help to explain or to justify 
the panel majoritys decision with respect to this 
particular issue. Put simply, the panel was asked to decide 
whether the recitation of the Pledge of Allegiance in public 
schools amounted to a government establishment of religion. 
The answer to that question is clearly, obviously, no. We 
made a grave error in failing to take Newdow I en banc, and 
we have failed to correct that error ourselves. Now we have 
Newdow II. Perhaps the Supreme Court will have the opportunity 
to correct the error for us. I must respectfully dissent 
from the order denying reconsideration en banc. 

18See Michael W. McConnell, Religious Freedom at the Crossroads, 59 

U. Chi. L. Rev. 115, 189 (1992). 

NEWDOW v. U.S. CONGRESS 

2799 

McKEOWN, Circuit Judge, with whom HAWKINS, 
THOMAS, and RAWLINSON, Circuit Judges, join, dissenting 
from the denial of rehearing en banc: 

The recitation of the Pledge of Allegiance by school children 
presents a constitutional question of exceptional importance 
that merits reconsideration by the en banc court. See 
Fed. R. App. P. 35(a)(2) (en banc hearing appropriate when 
the proceeding involves a question of exceptional importance). 
Although not every case of exceptional importance 
can or should be reheard en banc, this is a case that should be 
reheard. I respectfully dissent from the courts decision to 
deny rehearing en banc. 

OPINION 

GOODWIN, Circuit Judge: 

Michael Newdow appeals pro se a judgment dismissing his 
challenge to the constitutionality of the words under God in 
the Pledge of Allegiance to the Flag. Newdow argues that the 
addition of these words by a 1954 federal statute to the previous 
version of the Pledge of Allegiance (which made no reference 
to God) and the daily recitation in the classroom of the 
Pledge of Allegiance, with the added words included, by his 
daughters public school teacher are violations of the Establishment 
Clause of the First Amendment to the United States 
Constitution. 

FACTUAL AND PROCEDURAL BACKGROUND 

Newdow is an atheist whose daughter attends public elementary 
school in the Elk Grove Unified School District 
(EGUSD) in California. In accordance with state law and a 
school district rule, EGUSD teachers begin each school day 
by leading their students in a recitation of the Pledge of Alle



2800 

NEWDOW v. U.S. CONGRESS 

giance (the Pledge). The California Education Code 
requires that public schools begin each school day with appropriate 
patriotic exercises and that [t]he giving of the 
Pledge of Allegiance to the Flag of the United States of 
America shall satisfy this requirement. Cal. Educ. Code 
 52720 (1989) (hereinafter California statute).1 To implement 
the California statute, the school district that Newdows 
daughter attends has promulgated a policy that states, in pertinent 
part: Each elementary school class [shall] recite the 
pledge of allegiance to the flag once each day. 

The classmates of Newdows daughter in the EGUSD are 
led by their teacher in reciting the Pledge codified in federal 
law. On June 22, 1942, Congress first codified the Pledge as 
I pledge allegiance to the flag of the United States of America 
and to the Republic for which it stands, one Nation indivisible, 
with liberty and justice for all. Pub.L. No. 623, Ch. 
435,  7, 56 Stat. 380 (1942) (codified at 36 U.S.C.  1972). 
On June 14, 1954, Congress amended Section 1972 to add the 
words under God after the word Nation. Pub.L. No. 396, 
Ch. 297, 68 Stat. 249 (1954) (1954 Act). The Pledge is currently 
codified as I pledge allegiance to the Flag of the 
United States of America, and to the Republic for which it 
stands, one nation under God, indivisible, with liberty and justice 
for all. 4 U.S.C.  4 (1998) (Title 36 was revised and 
recodified by Pub.L. No. 105-225,  2(a), 112 Stat. 1494 
(1998). Section 172 was abolished, and the Pledge is now 
found in Title 4.) 

1The relevant portion of California Education Code  52720 reads: 

In every public elementary school each day during the school 
year at the beginning of the first regularly scheduled class or 
activity period at which the majority of the pupils of the school 
normally begin the schoolday, there shall be conducted appropriate 
patriotic exercises. The giving of the Pledge of Allegiance to 
the Flag of the United States of America shall satisfy the requirements 
of this section. 


NEWDOW v. U.S. CONGRESS 

2801 

Newdow does not allege that his daughters teacher or 
school district requires his daughter to participate in reciting 
the Pledge.2 Rather, he claims that his daughter is injured 
when she is compelled to watch and listen as her state-
employed teacher in her state-run school leads her classmates 
in a ritual proclaiming that there is a God, and that ours [sic] 
is one nation under God.  

Newdows complaint in the district court challenged the 
constitutionality, under the First Amendment, of the 1954 
Act, the California statute, and the school districts policy 
requiring teachers to lead willing students in recitation of the 
Pledge. He sought declaratory and injunctive relief, but did 
not seek damages. 

The school districts and their superintendents (collectively, 
school district defendants) filed a Federal Rule of Civil Procedure 
12(b)(6) motion to dismiss for failure to state a claim. 
Magistrate Judge Peter A. Nowinski held a hearing at which 
the school district defendants requested that the court rule 
only on the constitutionality of the Pledge, and defer any ruling 
on sovereign immunity. The United States Congress, the 
United States, and the President of the United States (collectively, 
the federal defendants) joined in the motion to dismiss 
filed by the school district defendants. The magistrate 
judge reported findings and a recommendation that the district 
court hold that the daily Pledge ceremony in the schools did 
not violate the Establishment Clause. District Judge Edward 

J. Schwartz approved the recommendation and entered a judgment 
of dismissal. This appeal followed. 
2Compelling students to recite the Pledge was held to be a First Amendment 
violation in West Virginia State Board of Education v. Barnette, 319 

U.S. 624, 642 (1943) ([T]he action of the local authorities in compelling 
the flag salute and pledge transcends constitutional limitations on their 
power and invades the sphere of intellect and spirit which it is the purpose 
of the First Amendment to our Constitution to reserve from all official 
control.). Barnette was decided before the 1954 Act added the words 
under God to the Pledge. 

2802 

NEWDOW v. U.S. CONGRESS 

DISCUSSION 

A. Jurisdiction 
Newdow asks the district court to order the President of the 
United States (the President) to alter, modify or repeal the 
Pledge by removing the words under God; and to order the 
United States Congress (Congress) immediately to act to 
remove the words under God from the Pledge. The President, 
however, is not an appropriate defendant in an action 
challenging the constitutionality of a federal statute. See 
Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992) (plurality) 
(observing that a court of the United States  has no 
jurisdiction of a bill to enjoin the President in the performance 
of his official duties ) (quoting Mississippi v. Johnson, 71 

U.S. 475 (1866)). 
Similarly, in light of the Speech and Debate Clause of the 
Constitution, Art. I,  6, cl. 1, the federal courts lack jurisdiction 
to issue orders directing Congress to enact or amend legislation. 
See Eastland v. United States Servicemens Fund, 
421 U.S. 491, 503 (1975). Because the words that amended 
the Pledge were enacted into law by statute, the district court 
may not direct Congress to delete those words any more than 
it may order the President to take such action. All this, of 
course, is aside from the fact that the President has no authority 
to amend a statute or declare a law unconstitutional, those 
functions being reserved to Congress and the federal judiciary 
respectively. 

Newdow nevertheless argues that because the 1954 Act 
violates the Establishment Clause, Congress should not be 
protected by the Speech and Debate Clause. This argument 
misses the jurisdictional, or separation of powers, point. As 
the Court held in Eastland, in determining whether or not the 
acts of members of Congress are protected by the Speech and 
Debate Clause, the court looks solely to whether or not the 
acts fall within the legitimate legislative sphere; if they do, 


NEWDOW v. U.S. CONGRESS 

2803 

Congress is protected by the absolute prohibition of the 
Clause against being questioned in any other Place. Id. at 

501. If the mere allegation that a valid legislative act was 
undertaken for an unworthy purpose would lift the protection 
of the Clause, then the Clause simply would not provide the 
protection historically undergirding it. Id. at 508-09. 
B. The State of California as a defendant 
The State of California did not join in the motion to dismiss 
or otherwise participate in the district court proceedings. It 
did, however, sub silentio, receive the benefit of the district 
courts ruling dismissing the complaint. Accordingly, a reversal 
of the order would result in the reinstatement of the complaint 
against the state. With respect to the validity of the 
California statute, however, unlike in the case of the Congressional 
enactment and the school district policy, no arguments, 
legal or otherwise, were advanced by the parties in the district 
court. Thus, we do not address separately the validity of the 
California statute. 

C. Standing 
Article III standing is a jurisdictional issue. See United 
States v. Viltrakis, 108 F.3d 1159, 1160 (9th Cir. 1997). 
Accordingly, it may be raised at any stage of the proceedings, 
including for the first time on appeal. See A-Z Intern. 

v. Phillips, 179 F.3d 1187, 1190-91 (9th Cir. 1999). To satisfy 
standing requirements, a plaintiff must prove that (1) it has 
suffered an injury in fact that is (a) concrete and particularized 
and (b) actual or imminent, not conjectural or hypothetical; 
(2) the injury is fairly traceable to the challenged action 
of the defendant; and (3) it is likely, as opposed to merely 
speculative, that the injury will be redressed by a favorable 
decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. 
(TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. 
Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)). 

2804 

NEWDOW v. U.S. CONGRESS 

Newdow has standing as a parent to challenge a practice 
that interferes with his right to direct the religious education 
of his daughter. Parents have a right to direct the religious 
upbringing of their children and, on that basis, have standing 
to protect their right. Doe v. Madison Sch. Dist. No. 321, 177 
F.3d 789, 795 (9th Cir. 1999) (en banc); see also Grove v. 
Mead Sch. Dist. No. 354, 753 F.2d 1528, 1532 (9th Cir. 1985) 
(Appellants have standing to challenge alleged violations of 
the establishment clause of the First Amendment if they are 
directly affected by use of [the challenged book] in the 
English curriculum. [Appellant] has standing as a parent 
whose right to direct the religious training of her child is 
allegedly affected.) (citation omitted). 

Newdow has standing to challenge the EGUSDs policy 
and practice regarding the recitation of the Pledge because his 
daughter is currently enrolled in elementary school in the 
EGUSD. However, Newdow has no standing to challenge the 
SCUSDs policy and practice because his daughter is not currently 
a student there. The SCUSD and its superintendent 
have not caused Newdow or his daughter an injury in fact 
that is actual or imminent, not conjectural or hypothetical. 
Laidlaw, 528 U.S. at 180 (citing Lujan, 504 U.S. at 560-561). 

D. Establishment Clause 
[1] The Establishment Clause of the First Amendment 
states that Congress shall make no law respecting an establishment 
of religion, U.S. Const. amend. I, a provision that 
the Fourteenth Amendment makes applicable with full force 
to the States and their school districts. Lee v. Weisman, 505 
U.S. 577, 580 (1992). Over the last three decades, the 
Supreme Court has used three interrelated tests to analyze 
alleged violations of the Establishment Clause in the realm of 
public education: the three-prong test set forth in Lemon v. 
Kurtzman, 403 U.S. 602, 612-13 (1971); the endorsement 
test, first articulated by Justice OConnor in her concurring 
opinion in Lynch v. Donnelly, 465 U.S. 668 (1984), and later 

NEWDOW v. U.S. CONGRESS 

2805 

adopted by a majority of the Court in County of Allegheny v. 
ACLU, 492 U.S. 573 (1989); and the coercion test first used 
by the Court in Lee. 

[2] In 1971, in the context of unconstitutional state aid to 
nonpublic schools, the Supreme Court in Lemon set forth the 
following test for evaluating alleged Establishment Clause 
violations. To survive the Lemon test, the government conduct 
in question (1) must have a secular purpose, (2) must 
have a principal or primary effect that neither advances nor 
inhibits religion, and (3) must not foster an excessive government 
entanglement with religion. Lemon, 403 U.S. at 612-13. 
The Supreme Court applied the Lemon test to every Establishment 
case it decided between 1971 and 1984, with the exception 
of Marsh v. Chambers, 463 U.S. 783 (1983), the case 
upholding legislative prayer.3 See Wallace, 472 U.S. at 63 
(Powell, J., concurring). 
In the 1984 Lynch case, which upheld the inclusion of a 
nativity scene in a citys Christmas display, Justice OConnor 
wrote a concurring opinion in order to suggest a clarification 
of Establishment Clause jurisprudence. 465 U.S. at 687 
(OConnor, J., concurring). 

[3] Justice OConnors endorsement test effectively collapsed 
the first two prongs of the Lemon test: 
The Establishment Clause prohibits government 
from making adherence to a religion relevant in any 
way to a persons standing in the political community. 
Government can run afoul of that prohibition in 

3In Marsh, the Court held that the Nebraska Legislatures practice of 
opening each days session with a prayer by a chaplain paid by the State 
did not violate the Establishment Clause of the First Amendment. [The] 
holding was based upon the historical acceptance of the practice that had 
become part of the fabric of our society.  Wallace, 472 U.S. at 63 n. 4 
(Powell, J., concurring) (quoting Marsh, 463 U.S. at 792). 


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NEWDOW v. U.S. CONGRESS 

two principal ways. One is excessive entanglement 
with religious institutions . . . . The second and more 
direct infringement is government endorsement or 
disapproval of religion. Endorsement sends a message 
to nonadherents that they are outsiders, not full 
members of the political community, and an accompanying 
message to adherents that they are insiders, 
favored members of the political community. 

Id. at 687-88 (OConnor, J., concurring). 

[4] The Court formulated the coercion test when it held 
unconstitutional the practice of including invocations and 
benedictions in the form of nonsectarian prayers at public 
school graduation ceremonies. Lee, 505 U.S. at 599. Declining 
to reconsider the validity of the Lemon test, the Court in 
Lee found it unnecessary to apply the Lemon test to find the 
challenged practices unconstitutional. Id. at 587. Rather, it 
relied on the principle that at a minimum, the Constitution 
guarantees that government may not coerce anyone to support 
or participate in religion or its exercise, or otherwise to act in 
a way which establishes a state religion or religious faith, or 
tends to do so. Id. (citations and internal quotation marks 
omitted). The Court first examined the degree of school 
involvement in the prayer, and found that the graduation 
prayers bore the imprint of the State and thus put school-age 
children who objected in an untenable position. Id. at 590. 
The next issue the Court considered was the position of the 
students, both those who desired the prayer and she who did 
not. Id. Noting that there are heightened concerns with protecting 
freedom of conscience from subtle coercive pressure 
in the elementary and secondary public schools, id. at 592, 
the Court held that the school districts supervision and control 
of the graduation ceremony put impermissible pressure on 
students to participate in, or at least show respect during, the 
prayer, id. at 593. The Court concluded that primary and secondary 
school children may not be placed in the dilemma of 

NEWDOW v. U.S. CONGRESS 

2807 

either participating in a religious ceremony or protesting. Id. 
at 594. 

Finally, in its most recent school prayer case, the Supreme 
Court applied the Lemon test, the endorsement test, and the 
coercion test to strike down a school districts policy of permitting 
student-led invocations before high school football 
games. See Santa Fe, 530 U.S. at 310-16. Citing Lee, the 
Court held that the delivery of a pregame prayer has the 
improper effect of coercing those present to participate in an 
act of religious worship. Id. at 312. Applying the Lemon test, 
the Court found that the school district policy was facially 
unconstitutional because it did not have a secular purpose. Id. 
at 314-16. The Court also used language associated with the 
endorsement test. Id. at 315 ([T]his policy was implemented 
with the purpose of endorsing school prayer.); id. at 317 
(Government efforts to endorse religion cannot evade constitutional 
reproach based solely on the remote possibility that 
those attempts may fail.). 

[5] We are free to apply any or all of the three tests, and 
to invalidate any measure that fails any one of them. Because 
we conclude that the school district policy impermissibly 
coerces a religious act and accordingly hold the policy unconstitutional, 
we need not consider whether the policy fails the 
endorsement test or the Lemon test as well. 
[6] In the context of the Pledge, the statement that the 
United States is a nation under God is a profession of a religious 
belief, namely, a belief in monotheism. The recitation 
that ours is a nation under God is not a mere acknowledgment 
that many Americans believe in a deity. Nor is it merely 
descriptive of the undeniable historical significance of religion 
in the founding of the Republic. Rather, the phrase one 
nation under God in the context of the Pledge is normative. 
To recite the Pledge is not to describe the United States; 
instead, it is to swear allegiance to the values for which the 
flag stands: unity, indivisibility, liberty, justice, andsince 

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NEWDOW v. U.S. CONGRESS 

1954monotheism. A profession that we are a nation under 
God is identical, for Establishment Clause purposes, to a 
profession that we are a nation under Jesus, a nation under 
Vishnu, a nation under Zeus, or a nation under no god, 
because none of these professions can be neutral with respect 
to religion. The school districts practice of teacher-led recitation 
of the Pledge aims to inculcate in students a respect for 
the ideals set forth in the Pledge, including the religious values 
it incorporates. 

The Supreme Court recognized the normative and ideological 
nature of the Pledge in Barnette, 319 U.S. 624. There, the 
Court held unconstitutional a school districts wartime policy 
of punishing students who refused to recite the Pledge and 
salute the flag. Id. at 642. The Court noted that the school district 
was compelling the students to declare a belief, id. at 
631, and requir[ing] the individual to communicate by word 
and sign his acceptance of the political ideas [the flag] . . . 
bespeaks, id. at 633. [T]he compulsory flag salute and 
pledge requires affirmation of a belief and an attitude of 
mind. Id. The Court emphasized that the political concepts 
articulated in the Pledge4 were idealistic, not descriptive: 
 [L]iberty and justice for all, if it must be accepted as 
descriptive of the present order rather than an ideal, might to 
some seem an overstatement. Id. at 634 n.14. The Court concluded 
that: If there is any fixed star in our constitutional 
constellation, it is that no official, high or petty, can prescribe 
what shall be orthodox in politics, nationalism, religion, or 
other matters of opinion or force citizens to confess by word 
or act their faith therein. Id. at 642. 

[7] The school districts policy here, like the schools 
action in Lee, places students in the untenable position of 
choosing between participating in an exercise with religious 
4Barnette was decided before under God was added, and thus the 
Courts discussion was limited to the political ideals contained in the 
Pledge. 


NEWDOW v. U.S. CONGRESS 

2809 

content or protesting. The defendants argue that the religious 
content of one nation under God is minimal. To an atheist 
or a believer in non-Judeo-Christian religions or philosophies, 
however, this phrase may reasonably appear to be an attempt 
to enforce a religious orthodoxy of monotheism, and is 
therefore impermissible. As the Court observed with respect 
to the graduation prayer in Lee: What to most believers may 
seem nothing more than a reasonable request that the nonbeliever 
respect their religious practices, in a school context may 
appear to the nonbeliever or dissenter to be an attempt to 
employ the machinery of the State to enforce a religious 
orthodoxy. Lee, 505 U.S. at 592. 

[8] The coercive effect of the policy here is particularly 
pronounced in the school setting given the age and impressionability 
of schoolchildren, and their understanding that 
they are required to adhere to the norms set by their school, 
their teacher and their fellow students.5 Furthermore, under 
Lee, non-compulsory participation is no basis for distinguishing 
Barnette from the case at bar because, even without a recitation 
requirement for each child, the mere presence in the 
classroom every day as peers recite the statement one nation 
under God has a coercive effect.6 The coercive effect of the 
Pledge is also made even more apparent when we consider the 
5The subtle and indirect social pressure which permeates the classroom 
also renders more acute the message sent to non-believing schoolchildren 
that they are outsiders. See Lee, 505 U.S. at 592-93 (stating that 
the risk of indirect coercion from prayer exercises is particularly pronounced 
in elementary and secondary public school because students are 
subjected to peer pressure and public pressure which is as real as any 
overt compulsion). 

6The objection to the Pledge in Barnette, like in the case at bar, was 
based upon a religious ground. The Pledge in the classroom context 
imposes upon schoolchildren the constitutionally unacceptable choice 
between participating and protesting. Recognizing the severity of the 
effect of this form of coercion on children, the Supreme Court in Lee 
stated, the State may not, consistent with the Establishment Clause, place 
primary and secondary school children in this position. 505 U.S. at 593. 


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NEWDOW v. U.S. CONGRESS 

legislative history of the Act that introduced the phrase under 
God. These words were designed to be recited daily in 
school classrooms. President Eisenhower, during the Acts 
signing ceremony, stated: From this day forward, the millions 
of our school children will daily proclaim in every city 
and town, every village and rural schoolhouse, the dedication 
of our Nation and our people to the Almighty. 100 Cong. 
Rec. 8618 (1954) (statement of Sen. Ferguson incorporating 
signing statement of President Eisenhower).7 All in all, there 
can be little doubt that under the controlling Supreme Court 
cases the school districts policy fails the coercion test.8 

The Supreme Court has addressed the Pledge in passing, 
and we owe due deference to its dicta. See United States v. 
Baird, 85 F.3d 450, 453 (9th Cir. 1996). Our opinion, however, 
is not inconsistent with this dicta. In Allegheny, the 
Court noted that it had considered in dicta the motto and the 
pledge, characterizing them as consistent with the proposition 
that government may not communicate an endorsement of 
religious belief. 492 U.S. at 602-03. And in Lynch, the Court 

7In addition, the legislative history of the 1954 Act makes it plain that 
the sponsors of the amendment knew about and capitalized on the state 
laws and school district rules that mandate recitation of the Pledge. The 
legislations House sponsor, Representative Louis C. Rabaut, testified at 
the Congressional hearing that the children of our land, in the daily recitation 
of the pledge in school, will be daily impressed with a true understanding 
of our way of life and its origins. This statement was 
incorporated into the report of the House Judiciary Committee. H.R. Rep. 
No. 83-1693, at 3 (1954), reprinted in 1954 U.S.C.C.A.N 2339, 2341. 

8In Aronow v. United States, 432 F.2d 242 (9th Cir. 1970), this court, 
without reaching the question of standing, upheld the inscription of the 
phrase In God We Trust on our coins and currency. But cf. Wooley v. 
Maynard, 430 U.S. 705, 722 (1977) (Rehnquist, J., dissenting) (stating 
that the majoritys holding leads logically to the conclusion that In God 
We Trust is an unconstitutional affirmation of belief). In any event, Aronow 
is distinguishable in many ways from the present case. The most 
important distinction is that school children are not coerced into reciting 
or otherwise actively led to participating in an endorsement of the markings 
on the money in circulation. 


NEWDOW v. U.S. CONGRESS 

2811 

observed that students recited the pledge daily, but only to 
support its point that there is a long tradition of official 
acknowledgment of religion. 465 U.S. at 674, 676. Neither 
of these two references speaks to the issue here. We may 
assume arguendo that public officials do not unconstitutionally 
endorse religion when they recite the Pledge, yet it does 
not follow that schools may coerce impressionable young 
schoolchildren to recite it, or even to stand mute while it is 
being recited by their classmates. 

Our decision is not inconsistent with Engel, which 
approved of encouraging students to recit[e] historical documents 
such as the Declaration of Independence which contain 
references to the Deity or . . . sing[ ] officially espoused 
anthems which include the composers professions of faith in 
a Supreme Being. 370 U.S. at 435 n.21. The Pledge differs 
from the Declaration and the anthem in that its reference to 
God, in textual and historical context, is not merely a reflection 
of the authors profession of faith. It is, by design, an 
affirmation by the person reciting it. I pledge is a performative 
statement. See J.L. Austin, How to Do Things with Words 

(J.O. Urmsson & Marina Sbisa eds., Harvard Univ. Press 
1975) (1962). To pledge allegiance to something is to alter 
ones moral relationship to it, and not merely to repeat the 
words of an historical document or anthem. 
The only other United States Court of Appeals to consider 
the issue is the Seventh Circuit, which held in Sherman v. 
Community Consolidated School District 21, 980 F.2d 437 
(7th Cir. 1992), that a policy similar to the one before us 
regarding the recitation of the Pledge of Allegiance containing 
the words one nation under God was constitutional. The 
Sherman court first stated that: 

If as Barnette holds no state may require anyone to 
recite the Pledge, and if as the prayer cases hold the 
recitation by a teacher or rabbi of unwelcome words 
is coercion, then the Pledge of Allegiance becomes 


2812 

NEWDOW v. U.S. CONGRESS 

unconstitutional under all circumstances, just as no 

school may read from a holy scripture at the start of 

class. 

980 F.2d at 444. It then concludes, however, that this reasoning 
is flawed because the First Amendment [does] not establish 
general rules about speech or schools; [it] call[s] for 
religion to be treated differently. Id. We have some difficulty 
understanding this statement; we do not believe that the Constitution 
prohibits compulsory patriotism as in Barnette, but 
permits compulsory religion as in this case. If government-
endorsed religion is to be treated differently from 
government-endorsed patriotism, the treatment must be less 
favorable, not more. 

The Seventh Circuit makes an even more serious error, 
however. It not only refuses to apply the Lemon test because 
of the Supreme Courts criticism of that test in Lee, but it also 
fails to apply the coercion test from Lee. Circuit courts are not 
free to ignore Supreme Court precedent in this manner. Rodriguez 
de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 
(1989) (If a precedent of this Court has direct application in 
a case, yet appears to rest on reasons rejected in some other 
line of decisions, the Court of Appeals should follow the case 
which directly controls, leaving to this Court the prerogative 
of overruling its own decisions.). Instead of applying any of 
the tests announced by the Supreme Court, the Seventh Circuit 
simply frames the question as follows: Must ceremonial 
references in civic life to a deity be understood as prayer, or 
support for all monotheistic religions, to the exclusion of atheists 
and those who worship multiple gods? 980 F.2d at 445. 
For the reasons we have already explained, this question is 
simply not dispositive of whether the school district policy 
impermissibly coerces a religious act. 

[9] In light of Supreme Court precedent, we hold that the 
school districts policy and practice of teacher-led recitation 

NEWDOW v. U.S. CONGRESS 

2813 

of the Pledge, with the inclusion of the added words under 
God, violates the Establishment Clause. 

In addition to the relief that Newdow seeks against the 
school districtrelief to which he is entitledNewdow seeks 
a declaration as to the constitutionality of the 1954 Act. The 
district court did not discuss that question because it dismissed 
Newdows complaint on the basis of its holding that 
the school districts policy did not violate the First Amendment. 
Given our contrary holding, we must consider whether 
to grant Newdows claim for declaratory relief as to the Act. 
Normally, whether to decide a claim for declaratory judgment 
is left to the discretion of the district court. 28 U.S.C. 
 2201(a); see also Government Employees Ins. Co. v. Dizol, 
133 F.3d 1220, 1222-23 (9th Cir. 1998). We doubt that, given 
the relief to which we decide Newdow is entitled, the district 
court would have exercised its discretionary power to resolve, 
in the present case, the additional issue as to which Newdow 
seeks declaratory relief. Accordingly, we decline to reach that 
issue here. 

[10] The judgment of dismissal is vacated with respect to 
Newdows claim that the school districts Pledge policy violates 
the Establishment Clause and the cause is remanded for 
further proceedings consistent with our holding. Plaintiff is to 
recover costs on this appeal. 
REVERSED AND REMANDED. 

FERNANDEZ, Circuit Judge, concurring and dissenting: 

I concur in parts A, B and C of the majority opinion, but 
dissent as to part D. 

We are asked to hold that inclusion of the phrase under 
God in this nations Pledge of Allegiance violates the religion 
clauses of the Constitution of the United States. We 
should do no such thing. We should, instead, recognize that 


2814 

NEWDOW v. U.S. CONGRESS 

those clauses were not designed to drive religious expression 
out of public thought; they were written to avoid discrimination.1 

We can run through some or all of the tests and concepts 
which have floated to the surface from time to time. Were we 
to do so, the one that appeals most to me, the one I think to 
be correct, is the concept that what the religion clauses of the 
First Amendment require is neutrality; that those clauses are, 
in effect, an early kind of equal protection provision and 
assure that government will neither discriminate for nor discriminate 
against a religion or religions. See Gentala v. City 
of Tucson, 244 F.3d 1065, 1083-86 (9th Cir.) (en banc) (Fernandez, 
J., dissenting), cert. granted and judgment vacated by 
534, U.S. 946, 122 S. Ct. 340, 151 L. Ed. 2d 256 (2001); 
Goehring v. Brophy, 94 F.3d 1294, 1306-07 (9th Cir. 1996) 
(Fernandez, J., concurring). But, legal world abstractions and 
ruminations aside, when all is said and done, the danger that 
under God in our Pledge of Allegiance will tend to bring 
about a theocracy or suppress somebodys beliefs is so minuscule 
as to be de minimis. The danger that phrase presents to 
our First Amendment freedoms is picayune at most. 

Judges, including Supreme Court Justices, have recognized 
the lack of danger in that and similar expressions for decades, 
if not for centuries, as have presidents2 and members of our 
Congress. See, e.g., County of Allegheny v. ACLU, 492 U.S. 
573, 602-03, 672-73, 109 S. Ct. 3086, 3106, 3143, 106 L. Ed. 
2d 472 (1989); Wallace v. Jaffree, 472 U.S. 38, 78 n.5, 105 

S. Ct. 2479, 2501 n.5, 86 L. Ed. 2d 29 (1985); Lynch v. Donnelly, 
465 U.S. 668, 676, 693, 716, 104 S. Ct. 1355, 1361, 
1Although the majority now formally limits itself to holding that it is 
unconstitutional to recite the Pledge in public classrooms, its message that 
something is constitutionally infirm about the Pledge itself abides and 
remains a clear and present danger to all similar public expressions of reverence. 
At the very least, it deprives children in public schools of the benefits 
derived from those expressions. 

2See, e.g., Lee v. Weisman, 505 U.S. 577, 632-35, 112 S. Ct. 2649, 
2679-80, 120 L. Ed. 2d 467 (1992) (Scalia, J., dissenting). 


NEWDOW v. U.S. CONGRESS 

2815 

1369, 1382, 79 L. Ed. 2d 604 (1984); Abington Sch. Dist. v. 
Schempp, 374 U.S. 203, 306-08, 83 S. Ct. 1560, 1615-16, 10 

L. Ed. 2d 844 (1963);3 Separation of Church & State Comm. 
v. City of Eugene, 93 F.3d 617, 622 (9th Cir. 1996) 
(OScannlain, J., concurring); Gaylor v. United States, 74 
F.3d 214, 217-18 (10th Cir. 1996); Sherman v. Cmty Consol. 
Sch. Dist. 21, 980 F.2d 437, 445-48 (7th Cir. 1992); OHair 
v. Murray, 588 F.2d 1144, 1144 (5th Cir. 1978) (per curiam); 
Aronow v. United States, 432 F.2d 242, 243-44 (9th Cir. 
1970); cf. Marsh v. Chambers, 463 U.S. 783, 795, 103 S. Ct. 
3330, 3338, 77 L. Ed. 2d 1019 (1983) (legislative prayer). I 
think it is worth stating a little more about two of the cases 
which I have just cited. In County of Allegheny, 492 U.S. at 
602-03, 109 S. Ct. at 3106, the Supreme Court had this to say: 
Our previous opinions have considered in dicta the motto 
and the pledge, characterizing them as consistent with the 
proposition that government may not communicate an 
endorsement of religious belief. The Seventh Circuit, reacting 
in part to that statement, has wisely expressed the following 
thought: 
Plaintiffs observe that the Court sometimes changes 
its tune when it confronts a subject directly. True 
enough, but an inferior court had best respect what 
the majority says rather than read between the lines. 
If the Court proclaims that a practice is consistent 
with the establishment clause, we take its assurances 
seriously. If the Justices are just pulling our leg, let 
them say so. 

3The citations to the four preceding Supreme Court opinions are to 
majority opinions, concurring opinions, and dissents. Because my point is 
that a number of Justices have recognized the lack of danger and because 
I hope to avoid untoward complication in the setting out of the citations, 
I have not designated which Justices have joined in which opinion. All in 
all, however, perusing those opinions indicates that Chief Justice Burger, 
Chief Justice Rehnquist, and Justices Harlan, Brennan, White, Goldberg, 
Marshall, Blackmun, Powell, Stevens, OConnor, Scalia, and Kennedy 
have so recognized. 


2816 

NEWDOW v. U.S. CONGRESS 

Sherman, 980 F.2d at 448. 

Some, who rather choke on the notion of de minimis, have 
resorted to the euphemism ceremonial deism. See, e.g., 
Lynch, 465 U.S. at 716, 104 S. Ct. at 1382 (Brennan, J., dissenting). 
But whatever it is called (I care not), it comes to this: 
such phrases as In God We Trust, or under God have no 
tendency to establish a religion in this country or to suppress 
anyones exercise, or non-exercise, of religion, except in the 
fevered eye of persons who most fervently would like to drive 
all tincture of religion out of the public life of our polity. 
Those expressions have not caused any real harm of that sort 
over the years since 1791, and are not likely to do so in the 
future.4 As I see it, that is not because they are drained of meaning.
5 Rather, as I have already indicated, it is because their 
tendency to establish religion (or affect its exercise) is exiguous. 
I recognize that some people may not feel good about 
hearing the phrases recited in their presence, but, then, others 
might not feel good if they are omitted. At any rate, the Constitution 
is a practical and balanced charter for the just governance 
of a free people in a vast territory. Thus, although we 
do feel good when we contemplate the effects of its inspiring 
phrasing and majestic promises, it is not primarily a feel-good 
prescription.6 In West Virginia Board of Education v. 

4They have not led us down the long path to kulturkampf or worse. 
Those who are somehow beset by residual doubts and fears should find 
comfort in the reflection that no baleful religious effects have been generated 
by the existence of similar references to a deity throughout our history. 
More specifically, it is difficult to detect any signs of incipient 
theocracy springing up since the Pledge was amended in 1954. 

5See also Sherman, 980 F.2d at 448 (Manion, J., concurring) (A civic 
reference to God does not become permissible . . . only when . . . it is 
sapped of religious significance. The Pledge is constitutional and [w]e 
need not drain the meaning from the reference [to God] to reach this conclusion. 


6We, by the way, indicated as much in American Family Assn, Inc. v. 
City and County of San Francisco, 277 F.3d 1114, 1125-26 (9th Cir. 
2002), which involved governmental conduct that was much more questionable 
than adoption of the phrase under God. See id. at 1126-28 
(Noonan, J., dissenting). 


NEWDOW v. U.S. CONGRESS 

2817 

Barnette, 319 U.S. 624, 630, 642, 63 S. Ct. 1178, 1181, 1187, 
87 L. Ed. 1628 (1943), for example, the Supreme Court did 
not say that the Pledge could not be recited in the presence of 
Jehovahs Witness children; it merely said that they did not 
have to recite it.7 That fully protected their constitutional 
rights by precluding the government from trenching upon the 
sphere of intellect and spirit. Id. at 642, 63 S. Ct. at 1187. As 
the Court pointed out, their religiously based refusal to participate 
in the ceremony [would] not interfere with or deny 
rights of others to do so. Id. at 630, 63 S. Ct. at 1181. We 
should not permit Newdows feel-good concept to change that 
balance. 

My reading of the stelliscript suggests that upon Newdows 
theory of our Constitution, accepted by my colleagues today, 
we will soon find ourselves prohibited from using our album 
of patriotic songs in many public settings. God Bless America 
and America The Beautiful will be gone for sure, and 
while use of the first three stanzas of The Star Spangled Banner 
will still be permissible, we will be precluded from straying 
into the fourth.8 And currency beware! Judges can accept 
those results if they limit themselves to elements and tests, 
while failing to look at the good sense and principles that animated 
those tests in the first place. But they do so at the price 
of removing a vestige of the awe all of us, including our children, 
must feel at the immenseness of the universe and our 
own small place within it, as well as the wonder we must feel 
at the good fortune of our country. That will cool the febrile 
nerves of a few at the cost of removing the healthy glow conferred 
upon many citizens when the forbidden verses, or 
phrases, are uttered, read, or seen. 

7I recognize that the Pledge did not then contain the phrase under 
God. 

8Nor will we be able to stray into the fourth stanza of My Country Tis 
of Thee for that matter. 


2818 

NEWDOW v. U.S. CONGRESS 

In short, I cannot accept the eliding of the simple phrase 
under God from our Pledge of Allegiance in any setting, 
when it is obvious that its tendency to establish religion in this 
country or to interfere with the free exercise (or non-exercise) 
of religion is de minimis.9 

Thus, I respectfully concur in part and dissent in part. 

9Lest I be misunderstood, I must emphasize that to decide this case it 
is not necessary to say, and I do not say, that there is such a thing as a de 
minimis constitutional violation. What I do say is that the de minimis tendency 
of the Pledge to establish a religion or to interfere with its free exercise 
is no constitutional violation at all. By the way, I am not the first to 
apply the de minimis concept to this area of the law. See, e.g., Mitchell v. 
Helms, 530 U.S. 793, 861, 120 S. Ct. 2530, 2569, 147 L. Ed. 2d 660 
(2000) (OConnor, J., concurring) (evidence of improper use of funds was 
de minimis and did not affect constitutional inquiry); Lee v. Weisman, 505 

U.S. 577, 630-31, 112 S. Ct. 2649, 2678, 120 L. Ed. 2d 467 (1992) (Souter, 
J. concurring) (establishment case; Madison recognized there is a difference 
between trivial and serious in constitutional practice, and pointed 
to the legal aphorism de minimis); Lynch v. Donnelly, 465 U.S. 668, 678, 
104 S. Ct. 1355, 1361-62, 79 L. Ed. 2d 604 (1984) (not all government 
conduct which gives special recognition to religion is unconstitutional; 
where the benefit is indirect or remote, it is not unconstitutional); School 
District of Abington v. Schempp, 374 U.S. 203, 308, 83 S. Ct. 1560, 1616, 
10 L. Ed. 2d 844 (1963) (Goldburg, J., concurring) (the measure of constitutional 
adjudication is the ability and willingness to distinguish 
between real threat and mere shadow.); Rapier v. Harris, 172 F.3d 999, 
1006 n.4 (7th Cir. 1999) (De minimis burdens on free exercise are not of 
constitutional dimension); Van Zandt v. Thompson, 839 F.2d 1215, 1222 
(7th Cir. 1988) (legislative prayer room would have a de minimis effect 
on advancement of religion); Walsh v. La. High Sch. Athletic Assn, 616 
F.2d 152, 158 (5th Cir. 1980) (de minimis burden on free exercise results 
in rejection of First Amendment challenge); Marsa v. Wernik, 430 A.2d 
888, 899 (N.J. 1981) (in an establishment case where impact of practice 
de minimis, it is unobjectionable); see also Peck v. Upshur County Bd. of 
Educ., 155 F.3d 274, 288-89 (4th Cir. 1998) (if a genuine threat of establishing 
religion becomes apparent, it is soon enough to address the issue). 

